Aven v. Steiner Cancer Hospital
| Citation | 5 S.E.2d 356,189 Ga. 126 |
| Docket Number | 12815. |
| Decision Date | 19 October 1939 |
| Parties | AVEN et al. v. STEINER CANCER HOSPITAL, Inc., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A contract between a municipality and another corporation for a lease, for a term of thirty-five years, of land owned by the municipality, in consideration of care of the poor of the city by the lessee to the extent of supplying specified medical and surgical treatment in a clinic or hospital existing on such land, is not unlawful as violating any of the provisions of the constitution embodied in the Code, §§ 2-5301, 2-5401, 2-5501, and 2-6401, Const. art. 7, § 5, par 1, § 6, par. 1, § 7, par. 1, § 16, par. 1.
2. Under an act of the General Assembly approved January 28 1938, revising and amending the provious law as to chartering corporations, a petition for charter need not be advertised before the charter is granted. Section 42 of the amending act, declaring that 'A corporation not organized for pecuniary gain or profit and without capital stock may be incorporated under the terms of this act,' is not unconstitutional on the ground that it violates the constitutional provision contained in the Code, § 2-1817, Const. art. 3,§ 7, par. 17, relating to the manner in which laws may be amended or repealed.
3. Under the charter of the City of Atlanta, the municipality acting in its proprietary capacity, would be authorized to rent or lease real estate belonging to it, for any valid and sufficient consideration within the objects of its incorporation.
(a) The mayor and council are further empowered to pass any and all by-laws and ordinances respecting 'care of the poor.'
(b) The charter does not limit care of the poor either to direct donation or to personal administration by officers or agents of the municipality; but the city may, except as otherwise limited by law, enter into a contract with another corporation having appropriate charter power, under the terms of which the latter corporation will care for the poor in the matter of medical and surgical treatment.
4. Such an agreement for care of the poor would not be invalid merely because the municipality in its governmental capacity would have no control over the directorate or management of the other contracting corporation, but would be dependent solely upon the contract and the remedies provided by law with respect to its performance or breach.
5. One municipal council may not by ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government.
(a) While under the charter of the City of Atlanta the mayor and general council are authorized to pass all laws and ordinances respecting 'care of the poor,' the city is not actually required by the charter to furnish to the poor any relief or assistance whatever; and a determination of whether it will do so, and to what extent, is a governmental function.
(b) Accordingly, a lease of land owned by the city, for a term of thirty-five years, for a rental or consideration to the city in the form of medical and surgical treatment to be furnished to the poor by the lessee corporation, would have the effect of preventing free legislation in a matter of municipal government, and for this reason would be illegal and void.
6. Such proposed agreement being unlawful, its execution and delivery may be restrained by injunction, at the instance of taxpayers. The judge erred in refusing to grant an injunction.
This case involves the validity of a proposed contract between the City of Atlanta and the Steiner Cancer Hospital, Inc., in which the city would lease to the hospital a described tract of land for thirty-five years, the 'rent reserved' to be 'in the form of the use by the lessee of said premises for the poor of the City of Atlanta.' In the petition as amended, citizens and taxpayers sought to enjoin the City of Atlanta, W. B. Hartsfield, mayor, and Steiner Cancer Hospital, Inc., from entering into the proposed contract, in pursuance of an ordinance or resolution adopted by the General Council of the municipality. On interlocutory hearing the case was submitted to the judge upon an agreed statement supplemented by evidence. Several attacks were made upon the validity of the proposed agreement, all of which were overruled. The plaintiffs excepted to the refusal of an injunction. The petition was filed by C. C. Aven as a taxpayer of the City of Atlanta, in behalf of himself and of such other taxpayers as might afterwards desire to join in the petition. More than fifty other persons were later added, by amendment, as parties plaintiff. The petition as amended alleged substantially the following facts: The will of Albert Steiner, dated December 6, 1918, contained the following provision: The City of Atlanta furnished a tract of land, the same being a part of the Grady Hospital territory, and the trustees of the Steiner will erected the Albert Steiner ward adjoining Grady Hospital. The land and the building all belong to the City of Atlanta, and have been used and operated as a cancer clinic from a date some time after the death of Albert Steiner until the present time. On January 3, 1939, the general council of the City of Atlanta passed an ordinance authorizing the mayor to execute in behalf of the city a lease contract between the city and Steiner Cancer Hospital Inc., according to the terms and conditions of a proposed contract attached to and made a part of the ordinance. Steiner Cancer Hospital, Inc., was granted 'some kind of charter' on January 4, 1939, the validity of which is denied by the plaintiffs. The following is a copy of the proposed contract:
'This agreement, made and entered into this the ___ day of _____ 193_, by and between the City of Atlanta, Georgia, hereinafter referred to as lessor, and Steiner Cancer Hospital Inc., hereinafter referred to as lessee, witnesseth that for and in consideration of the mutual covenants herein contained it is agreed:
'Lessor, pursuant to a resolution of the mayor and General Council of the City of Atlanta, adopted on the ___ day of _____, 193_, does hereby lease unto lessee the following described property, to wit [description of land], subject to the following terms and conditions:
'(1) This lease shall commence on the 1st day of January, 1939, and shall extend for a period of 35 years,
'(3) It is contemplated that lessee shall at its own expense, and without obligation of lessor, provide additional improvements and facilities on the leased premises, it being agreed and understood that any and all improvements placed on the leased premises shall become the property of the lessor upon the termination of this lease, and that lessee shall not have the privilege or right to in any wise encumber the leased property or any improvements placed thereon, and any attempt or endeavor by lessee to create any lien upon the leased premises or upon improvements so placed on the leased premises shall be sufficient grounds for cancellation of this lease.
'(4) Lessee assumes and agrees to carry out the terms, conditions, and obligations of a certain contract dated April 6, 1922, between lessor, the City of Atlanta, and the trustees of the estate of Albert Steiner, which said contract, among other things, gives priority consideration to the poor of the City of Atlanta.
'(5) The board of directors of said lessee corporation shall at no time consist of more than five members, of which one shall at all times be the mayor of the City of Atlanta, two shall at all times be selected from among the general council of the City of Atlanta, and two shall be selected from the trustees of the Albert Steiner will.
'(6) Lessee agrees to maintain the leased premises in as good order and condition, ordinary wear and tear excepted, as the property is in at the beginning of said lease.
'(8) This lease may be assigned, but no assignment shall relieve lessee of any obligation...
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